News

Good Character Directions and Allegations of Historic Sexual Offences

Wed 25th Jul 2018

In many cases involving allegations of historic sexual offences the sole prosecution evidence is that of the Complainant.  A Defendant must rely upon what is available to them and a properly formulated good character direction, where applicable, is one such evidential resource which cannot not be understated.  As the reader will likely be aware, the traditional good character direction contains two elements; the credibility element (the first limb) and the propensity element (the second limb).

Credibility

By reason of what is often colloquially described as ‘word on word’ allegations (sometimes however with an initial disclosure to a family member or a friend), the credibility of the Defendant and the Complainant is so often the central issue for the jury.  Ensuring that a positive and definitive good character direction is given is therefore absolutely vital.

In R v Small [2008] EWCA Crim 2788, an appeal against conviction was allowed, in part because the trial judge had directed the jury that they could take into account the credibility limb of the good character direction, whereas the Court of Appeal held that the jury should have been directed that they should take such into account.  A variation of the wording of the credibility element of the good character direction will likely have to be considered where a Defendant has provided a no comment interview, or has not given oral evidence.

Propensity

Where a Defendant has an unblemished record, the importance of the propensity limb of the good character direction must be emphasised in cases involving allegations of historic sexual offences.  This is because, not only will a Defendant be reliant upon the absence of previous convictions, cautions or other misconduct in the period prior to the dates to which the indictment relates, but also the time between the end of the indictment period and trial.  The latter time period can, by reason of the allegations being ‘historic’ sometimes involve a substantial period of time.  In R v GJB [2011] EWCA Crim 867, Stanley Burnton LJ stated that ‘In historic sexual abuse cases, where the defence is a straightforward denial, the defendant may have little more than his good character to rely on’.  A Defendant is on the back-foot by reason of being accused of an offence or offences which involve, at times, a significant delay in their reporting. But the inclusion of such a direction can go some way to attempt to redress the ‘imbalance’ and seek to ensure that the Defendant receives a fair trial.

Stanley Burnton LJ in R v GJB explained that ‘…in an historic sex abuse case such as the present, there are two aspects of propensity to be considered. The first is that applicable even where the allegation is of a recent offence: a person of good character is less likely to have committed the alleged offence. The second results from the passage of time since the alleged offence: the fact that the defendant has not committed any offence, let alone one involving sexual abuse, since the date of the alleged offence goes to the likelihood or otherwise of his having committed the offence or offences. Such a direction is particularly apt where delay since the date of the alleged offences renders it more difficult for the Defendant to defend himself, as is so often the case.’

There was argument in R v GJB that the fact that so long had passed since the alleged commission of the offences, with no offending in the interim by the Defendant, that this could be a ‘third limb’ to the traditional two limbs that feature in the currently constituted good character direction.   However, Stanley Burnton LJ was unwilling to extend the direction in this manner, but rather described such circumstances as requiring ‘an adaption of the normal propensity direction’.

The modification of the propensity limb is not exclusive to historic allegations which are of a sexual nature.  In principle it can apply to a wide variety of offences, but of course by reason of time-limits in respect of summary-only offences, such debate will most likely feature in cases at the Crown Court.

R v Hunter

The Court of Appeal in R v Hunter [2015] EWCA Crim 631 considered, in detail, good character directions.  Whilst this case did not provide specific guidance in respect of cases involving allegations of historic sexual offences, it is a useful guide for practitioners in particular where a Defendant may have previous convictions, cautions or there is evidence of other misconduct, but such can be argued to be old, minor and/or irrelevant.

Christopher Rowe

← Back to News & Resources